or not she is quick with the child, and in case they shall find CH. XXI. in the affirmative, the court is to respite the execution of such offender until she shall be delivered of a child, or it is no longer possible in the course of nature that she should be so delivered. The forms of oath to such jury of matrons are as follows:

'You, as forematron of this jury, shall swear that you will search and try the prisoner at the bar, whether she be with child of a quick child, and thereof a true verdict give, according to your skill and understanding. So help you God."

The oath to each of the other matrons is then administered :

"The same oath which your forematron has taken on her part, you shall well and truly observe and keep on your part. -So help you God."

For the purpose of determining whether the woman is quick with child or not, the jury retire to some convenient place, and when they have agreed upon their verdict they return to the court and deliver it. If it is found that she is quick with child execution is respited.

The court, when nothing occurs to prevent it, usually sen- Sentence. tences the defendant at the assizes or sessions at which the trial takes place, and immediately after the verdict is given. When a question is reserved as mentioned post, for the consideration of the Court for Crown Cases Reserved the judgment may be postponed. The general provisions as to sentences and punishments are considered in the next chapter.

In practice the formal record is hardly ever made up, Formal reunless it is necessary to do so for the purpose of bringing cord. error or for some other reason-it is made up from the minute book kept by the officer of the court.

restitution

property

By the 24 & 25 Vict. c. 96, (the Larceny Act, 1861), s. 100, Awarding if any person guilty of any such (c) felony or misdemeanor of stolen as is mentioned in this Act, in stealing, taking, obtaining extorting, embezzling, converting, or disposing of, or in know- &c. ingly receiving any chattel, money, valuable security, or other property whatsoever, is indicted for such offence, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property must be restored to the owner or his representative; and in every such case the court before whom any person is tried

(c) This section applies where goods, &c., have been obtained by false pretences. (R. v. Stancliffe, 11 Cox C. C. 318; R. v. Goldsmith, 12 Cox C. C. 594.)

PART V. for any such felony or misdemeanor has power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner; but if it appears before any award or order made that any valuable security has been bonâ fide paid or discharged by some person or body corporate liable to the payment thereof, or being a negotiable instrument has been bonâ fide taken or received, by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, in such case the court can not award or order the restitution of such security: nothing in this section contained applies to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent, intrusted with the possession of goods or documents of title to goods, for any misdemeanor against this Act.

By 35 & 36 Vict. c. 93, s. 30, "if any person is convicted in any court of feloniously taking, or fraudulently obtaining any goods and chattels, and it appear to the court that the same have been pawned with a pawnbroker, the court, on proof of the ownership of the goods and chattels, may if it think fit, order the delivery thereof to the owner, either on payment to the pawnbroker of the amount of the loan or any part thereof, or without payment thereof or of any part thereof, as to the court, according to the conduct of the owner and the other circumstances of the case, seems just and fitting."

It has been held that if a party convicted of stealing goods has sold them for money which is in his possession, the money may be ordered to be given up to the prosecutor, the owner of the goods; but it may be doubtful whether this can be done (a). One stole cattle and sold them in open market at Coventry, and was immediately apprehended by the sheriffs

(a) In a case like this an order may be made for the payment by the prisoner to the prosecutor of a sum not exceeding £100 by way of satisfaction or compensation for the loss of the goods, which order can be enforced; see 33 & 34 Vict. c. 23, s. 4, post, p. 158; or if it appears to the Court by the evidence that the prisoner has sold the stolen property to any person, and that such person had no knowledge that the same was stolen, and that moneys were taken from the prisoner on his apprehension, the Court may, on the application of the purchaser, and on the restitution of the property to the prosecutor, order that out of such moneys a sum not exceeding the proceeds of the sale be delivered to the purchaser; see 30 & 31 Vict. c. 35, s. 9, post p. 146.

of Coventry, who seized the money, and the thief was CH. XXI. hanged at the suit of the owner of the cattle; and by the Court the party shall have restitution of the money, notwithstanding the words of the 21 Hen. 8, c. 11, "the goods stolen," &c.; and CROOKE, J., said that this was usual at Newgate. (Haris's case, Noy. 128.) Where a servant took gold from his master and changed it into silver, it was held that the master should have restitution of the silver by 21 Hen. 8, c. 11 (Hanberries' case, cited in Holiday v. Hicks, Cro. El. 661); and where a prisoner was convicted of stealing a bill of exchange for £100 and a considerable sum of money, and the evidence tended to show that he purchased a horse with part of the proceeds of the bill, the Court ordered the horse to be delivered to the prosecutor. (Rex v. Powell, 7 C. & P. 640, the Common-Serjeant, after consulting GURNEY, B., and WILLIAMS, J.; see Reg. v. The City of London, 1 E. B. & E. 509; 27 L. J. M. C. 231, sed query.) The order of restitution is cumulative to the ordinary remedy by action, and is not a condition precedent to such remedy, and the only consequence of the court refusing an order is, to leave the owner to the ordinary remedy by action; and in such case the owner may maintain an action for the stolen goods after the conviction of the thief; if the goods have been sold in market overt, the property in them is revested in the owner on conviction of the thief. (Scattergood v. Sylvester, 15 Q. B. 506; R. v. Stancliffe. 11 Cox C. C. 318.)

At p. 40 of the report of the Criminal Code Commissioners it is stated, "Where property has been stolen, no change in the property is produced by the theft, but a bonâ fide purchaser in market overt acquires under the common law a property superior to that of the true owner. By the general law merchant a bonâ fide purchaser of a negotiable instrument, though it may be from a thief, acquires a property superior to that of the true owner. By the common law where property has been parted with under a contract obtained by fraud, the property passes, though it may be reclaimed and the contract rescinded; but the right of a bond fide purchaser for value before rescision is superior to that of the former owner. And by the Factors' Acts purchasers from agents entrusted with goods or the title to goods acquire a title superior to that of the true owner. The existing statute law, 24 & 25 Vict. c. 96, s. 100, however, rewards one who prosecutes with success by depriving the innocent purchaser in market overt, and the innocent purchaser of property ob tained by a contract not yet rescinded, of the property which

PART V. they have innocently acquired (a); yet at the same time the enactment excepts the cases of negotiable instruments and property pledged or sold by agents within the Factors' Acts. If there is any ground for these exceptions other than the fact that the mercantile classes who would suffer without them are vigilant and powerful, we cannot perceive it.”

By 30 & 31 Vict. c. 35, s. 9, "where any prisoner shall be convicted, either summarily or otherwise, of larceny or other offence, which includes the stealing of any property, and it shall appear to the Court by the evidence that the prisoner has sold the stolen property to any person, and that such person has had no knowledge that the same was stolen, and that any monies have been taken from the prisoner on his apprehension, it shall be lawful for the court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order that out of such monies a sum not exceeding the amount of the proceeds of the said sale be delivered to the said purchaser.”

An enactment 2 & 3 Vict. c. 71, (b) s. 29, which has application within the metropolitan police district should be noticed. By this enactment "if any goods or money charged to be stolen or fraudulently obtained shall be in the custody of any constable by virtue of any warrant of a justice, or in prosecution of any charge of felony or misdemeanor in regard to the obtaining thereof, and the person charged with stealing or obtaining possession as aforesaid shall not be found, or shall have been summarily convicted or discharged, or shall have been tried and acquitted, or if such person shall have been tried and found guilty, but the property so in custody shall not have been included in any indictment upon which he shall have been found guilty, it shall be lawful for any magistrate to make an order for the delivery of such goods or money to the party who shall appear to be the rightful owner thereof, or in case the owner cannot be ascertained, then to make such order with respect to such goods or money as to such magistrate shall seem meet: Provided always, that no such order shall be any bar to the right of any person or persons to sue the party to whom such goods

(a) In Moyce v. Newington, L. R. 4 Q. B. D. 32; 48 L. J. Q. B. 125, a construction is put on the section which, if sustained would render the alteration proposed less necessary. It is, however, as it seems to us, better to put an end to all doubt. Quary whether this case can be sustained, see Scattergood v. Sylvester, 15 Q. B. 506; 19 L. J. Q. B. 407; Lindsay v. Cundy, 46 L. J. Q. B. 233; L. R. 2 Q. B. D. 96; 14 Cox C. C. 93.

(b) This is an Act for regulating the police courts of the metropolis.

or money shall be delivered, and to recover such goods or CH. XXI. money from him, by action at law, so that such action shall be commenced within six calendar months next after such order shall be made."

The plaintiff was tried and acquitted on a charge of stealing a diamond ring and pin found on his person. The defendant, a superintendent of police, into whose hands the goods had come in the ordinary course of proceedings, did not deliver the goods to the plaintiff, but within a reasonable time applied to a metropolitan police magistrate, under the above enactment, for an order as to how he was to dispose of the goods. The magistrate after hearing evidence, including that of the plaintiff, adjourned the hearing to a day which had not expired at the time of pleading the statement of defence. In an action for the detention and conversion of the goods,-Held, on demurrer to the statement of defence based on the above facts, that the defendant having within a reasonable time proceeded in accordance with the provisions of the Act to place the matter in the hands of the magistrate, was not liable. (Bullock v. Dunlap, 46 L. J. Ex. 150.)